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District Court of Appeal, Second District, Division 2, California.


Civ. 13570, 13571.

Decided: June 18, 1942

Louis M. Lissner in pro. per., and Laurence M. Weinberg, both of Los Angeles, for appellant. Meserve, Mumper & Hughes and Roy L. Herndon, all of Los Angeles, for respondent.

Appellant, Louis M. Lissner, is the receiver appointed by the superior court in a divorce action in which Rowena Schneider Baldwin is plaintiff and Baldwin M. Baldwin, her husband, is defendant. In the complaint in that action it is alleged that Baldwin M. Baldwin is the son of Anita M. Baldwin, decedent herein, and as such he is entitled under the provisions of his mother's will to a legacy of $1,500 per month during administration of the estate. Upon the basis of the allegations and pursuant to the prayer of the complaint in the divorce proceedings the court appointed appellant as receiver and instructed him to take into his possession all community property of Baldwin and his wife and all separate property of Baldwin, and further instructed him “to take and pursue all necessary steps in the matter of the estate of Anita M. Baldwin to reduce the claim of defendant Baldwin M. Baldwin for $1,500 per month during the course of administration to possession, and to hold such sums as he may recover in such proceedings in accordance with the order appointing him as receiver.” Appellant thereupon, as receiver, filed a petition in the estate proceeding pursuant to section 1010 of the Probate Code, seeking ratable distribution and petitioning the probate court to distribute to him, as receiver, the said legacy of Baldwin M. Baldwin. Appellant also filed in the estate proceeding a request for special notice pursuant to section 1202 of the Probate Code, and motion was made by the co–executors to strike this request from the files. Upon the hearing in the probate court the petition for ratable distribution was denied and the motion to strike was granted. The appeal is from both of these actions of the court.

Subsequently respondents, as co–executors, filed a petition for partial distribution pursuant to section 1000 of the Probate Code, and upon the hearing thereof distribution of the accumulated monthly payments of the legacy from October, 1939, to December, 1940, was ordered to be made to Baldwin M. Baldwin and his sister, Dextra Baldwin Jones. Appellant appeared at said hearing and objected to the order, and now appeals therefrom. The appeals involve the same questions and have been consolidated for presentation here.

It may be said at the outset that the order striking from the files the request for special notice is not an appealable order, Probate Code, § 1240, and therefore that appeal must be dismissed. The action of the court may be considered, however, in connection with the other two appeals, insofar as it is relevant thereto.

Respondents, Baldwin M. Baldwin and Dextra Baldwin Jones (now known as Dextra Baldwin Derx), although the recipients of the legacies, appear throughout the probate proceedings here involved and upon these appeals in their representative capacities of executor and executrix, respectively. Baldwin M. Baldwin has never been served and has made no appearance in the divorce proceedings, it being claimed by appellant that he has absented himself from the state of California to avoid service. The order appointing a receiver and for payment of attorneys' fees, costs and maintenance pendente lite were made in preliminary proceedings and before the receiver had taken any property or funds into custody. Appellant was not served with special notice of the hearing upon respondents' petition for partial distribution, although he was present in court and participated in the hearing after denial of his motion for continuance.

Respondents contend that appellant is not a party entitled to petition for ratable distribution under the provisions of section 1010 of the Probate Code, and is not a person interested in the estate within the meaning of section 1202 of the Probate Code. We think both of these contentions must be sustained.

Probate proceedings are purely statutory. The probate court has only such jurisdiction as the Probate Code prescribes, and procedures set forth therein must be substantially, if not strictly, followed. Texas Co. v. Bank of America Nat. T. & S. Ass'n, 5 Cal.2d 35, 39, 53 P.2d 127; In re Estate of Troy, 1 Cal.App.2d 732, 736, 37 P.2d 471. Section 1010 of the Probate Code reads as follows:

“When the time for filing or presenting claims has expired and all uncontested claims have been paid, or are sufficiently secured by mortgage, or otherwise, but the estate is not in a condition to be finally closed and distributed, the executor or administrator, or any heir, devisee or legatee, or the assignee, grantee or successor in interest of any heir, devisee or legatee, may petition the court for a ratable payment of the legacies, or ratable distribution of the estate, to the heirs, devisees or legatees, or their assignees, grantees or successors in interest, or, where there are priorities, to those of the class or classes having priority; or, if the decedent was a nonresident and left a will which has been duly proved or allowed in the State of his residence, and it is necessary, in order that the estate or any part thereof may be distributed according to the will, or it is for the best interests of the estate, that any part of the estate in this State should be delivered to the executor or administrator in the State of the decedent's residence, the executor or administrator may petition the court for an order authorizing the delivery of such portion of the estate as the court shall deem safe and proper and for the best interests of the estate, to the executor or administrator in the State of the decedent's residence. The clerk shall set the petition for hearing by the court and give notice thereof for the period and in the manner required by section 1200 of this code. Any person interested in the estate or any coexecutor or coadministrator may resist the application.”

Two questions at once present themselves: First, is appellant the successor in interest of the legatee under the above section, and, second, does the probate court have jurisdiction to determine the controversy where anyone other than the legatee seeks distribution and his right to do so is disputed? Appellant contends that no such controversy is presented, because the legatee himself, the real party in interest, has not appeared to oppose it. This contention, however, is answered by the section under consideration, which provides that “any person interested in the estate or any coexecutor or coadministrator may resist the application.” Both the executor (Baldwin M. Baldwin) and the executrix oppose the application herein.

Is appellant the successor in interest of the legatee, within the meaning of this section? In considering this question it should be borne in mind that nowhere in the Probate Code is the probate court authorized or empowered to distribute any less or any different title than that held by the decedent. The very purpose of probate proceedings is to satisfy the creditors of decedent and then determine who succeeds to his title to the residue. The person seeking any portion of the estate by distribution is either entitled to all of decedent's title to that portion or he is not entitled to distribution at all. The only statute which may be considered as in any way limiting this principle is section 561 of the Code of Civil Procedure; but even under that statute the entire title to the personal property is distributed to the heir but possession is delivered to the attaching officer so that any claims of the attaching creditor against the heir or legatee may be passed upon by another court. No attempt was made to comply with that statute in the instant case and therefore it cannot be here considered. In re Estate of Troy, supra.

It has been decided many times that a receiver does not take title. In North v. Cecil B. DeMille Productions, Inc., 2 Cal.2d 55, 57, 39 P.2d 199, 200, it is said: “A receiver pendente lite is a person appointed to take charge of the fund or property to which the receivership extends while the case remains undecided. * * * The receiver acquires no title, but only the right of possession as the officer of the court. The title remains in those in whom it was vested when the appointment was made.” (Italics ours.) In People v. United States Fidelity & Guaranty Co., 45 Cal.App.2d 474, 476, 114 P.2d 389, 390, it is said: “The receiver [of a corporation], by virtue of his appointment, succeeded to the powers of the board of directors and thereafter acted in a dual capacity––as the representative or agent of the creditors, and as agent or representative of the corporation.” See, also, DeForrest v. Coffey, 154 Cal. 444, 449, 98 P. 27. In fact, appellant himself states in his brief that “we do not claim that appellant succeeded to Baldwin's title to the legacy, but we urge that he was given authority to take possession of the property for the purposes of receivership.” It seems clear that the probate court has no power to distribute the possessory right to the property, leaving the balance of the title suspended. Neither can it distribute to a person acting in the capacity of “representative or agent” of either the creditor or the legatee.

Turning to the second question mentioned above, while it is true that the probate court may distribute to the assignee or successor in interest of the legatee, this is only true where there is no dispute about the fact that the person petitioning is such assignee or successor in interest. This is clearly stated in Re Estate of Howe, 161 Cal. 152, 156, 118 P. 515, 517, and the Supreme Court there adds: “When, however, the fact of conveyance is in dispute, or where its validity or effect is an issue upon the distribution, the determination of that question is not a matter within the probate jurisdiction of the court.” The basis for this holding is well stated in Parr v. Reyman, 215 Cal. 616, 620, 12 P.2d 440, 442, quoting from Martinovich v. Marsicano, 137 Cal. 354, 356, 70 P. 459, as follows: “ ‘Matters of probate’ include the ascertainment and determination of the persons who succeed to the estate of a decedent, either as heir, devisee, or legatee, as well as the amount or proportion of the estate to which each is entitled, and also the construction or effect to be given to the language of a will; but do not include a determination of claims against the heir or devisee for his portion of the estate arising subsequent to the death of the ancestor, whether such claim arises by virtue of his contract or in invitum; nor is the determination of conflicting claims to the estate of an heir or devisee, or whether he has conveyed or assigned his share of the estate a ‘matter of probate.’ ” The same statement is quoted with approval in Re Estate of Howe, supra. See, also, McGee v. Allen, 7 Cal.2d 468, 60 P.2d 1026.

It cannot, of course, be successfully contended that the order of the court in the divorce proceeding instructing appellant “to take all necessary steps to reduce said legacy to possession” could in any manner enlarge the jurisdiction of the probate court or change the status of appellant before that tribunal.

No new or different questions are presented upon the appeal from the order of the court distributing the legacy to Baldwin M. Baldwin pursuant to the petition for partial distribution. In fact, a duplicate of appellant's printed brief is filed therein. The only claims of invalidity therein are, therefore, first, that the legacy should have been distributed to appellant, leaving nothing to distribute on this second petition, and, second, that the court was without jurisdiction to make this order because appellant had not received special notice in accordance with his request, filed pursuant to Probate Code section 1202, although he was in fact present and participated in the hearing. The first of these objections has been disposed of by our views concerning appellant's petition for ratable distribution. As to the second, assuming, without deciding, that the failure to give the notice to appellant, if he were entitled thereto, would have the effect claimed, it is our conclusion, as already indicated, that he is not entitled to make the request for such notice. It may well be that the plaintiff in the divorce action is, as a creditor of the legatee, entitled to file the request for special notice. In re Estate of Reinicke, 44 Cal.App.2d 271, 112 P.2d 311. However, so far as the record discloses she has filed no such request. Appellant, as receiver, is not a creditor. He is an officer of the court, appointed for a very limited purpose, namely, to take possession of, and hold for further order of the court appointing him, any property which he is entitled to take into his custody. As we have seen, he is not authorized to take custody of any property of the estate of decedent herein and is therefore not interested in this estate. To give him notice would serve no purpose. He neither comes within the wording of the statute nor the reason upon which the requirement of special notice is based.

As this disposes of both appeals it will be unnecessary to pass upon other matters discussed in the briefs.

The appeal from the order striking from the files the request for special notice is dismissed. The order denying the petition of appellant for ratable distribution is affirmed. The order granting the petition of respondents for partial distribution is affirmed.

STEPHENS, Justice pro tem.

MOORE, P. J., and McCOMB, J., concurred.